Argued and Submitted September 30, 2013.
Lincoln County Circuit Court 093236, 100339. Thomas O. Branford, Judge.
Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Anna M. Joyce, Solicitor General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Douglas F. Zier, Senior Assistant Attorney General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[269 Or.App. 648] HASELTON, C. J.
Defendant was convicted, following a bench trial, of two counts of sexual abuse in the first degree, ORS 163.427. On appeal, she raises two assignments of error. We reject without published discussion defendant's second assignment of error, pertaining to a motion for judgment of acquittal for one of the charges, and write to address her first assignment of error. In that assignment, defendant contends that the trial court erred in denying her motion to suppress statements that she made in the course of, and following, a polygraph exam. Specifically, she argues that, under the totality of the circumstances, her statements were not given voluntarily and that her statements in a subsequent police interview were derivative of that illegality. In addition, defendant contends that the statements that she made in the context of the polygraph exam were inadmissible under the analysis of State v. Harberts, 315 Or. 408, 848 P.2d 1187 (1993), and that, in all events, those statements cannot be presented fairly without reference to the polygraph context.
For the reasons explained below, we conclude that the trial court did not err in determining that defendant voluntarily participated in the polygraph exam. We further conclude that, even assuming, without deciding, that defendant's statements in the polygraph context were inadmissible under the evidentiary limitations prescribed in Harberts, any error was harmless, given the proper admission and consideration of other, more detailed and inculpatory, statements that defendant made outside of the polygraph context. Accordingly, we affirm.
We review the trial court's denial of defendant's motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's findings of fact when there is constitutionally sufficient evidence in the record to support those findings. Id. When the court has made no findings, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. The following relevant facts are either undisputed [269 Or.App. 649] or are consistent with the trial court's findings of fact and ultimate conclusion.
Defendant and her ex-husband (father) are the parents of a daughter, L. On July 14, 2009, Lincoln County police detective Miller received a complaint from father's girlfriend that defendant might be sexually abusing L, who was then three years old. Miller contacted the Department of Human Services (DHS) to inquire about those allegations. On July 20, 2009, DHS returned Miller's call and informed her that defendant had recently alleged that father had sexually abused L but that, after an investigation, DHS had determined defendant's allegations to be unfounded. DHS told Miller that, given the recentness of that investigation, it was going to deem the girlfriend's report of child abuse to be unfounded.
Miller spoke with defendant by telephone about the allegations the next day, and defendant explained that she and father were having issues in relation to their divorce and were " battling over custody" of L. Defendant also told Miller that she was concerned about the conditions at father's house because L had just returned home from his house with a diaper rash, flea bites, and cat scratches. Defendant denied ever touching L with a sexual purpose and explained that she only touched her daughter for routine caretaking. During their phone conversation, Miller never told defendant that she was obligated to answer Miller's questions; nor did Miller make any promises or threats during the conversation. A few days later, on July 23, defendant went to Miller's office and reported that L had just returned from weekend visitation with father and had suspicious bumps on her head.
During either the phone interview or the subsequent office visit, Miller asked defendant if she would be willing to take a polygraph exam. Such a request is routine in cases where, as here, the victim was too young to be interviewed. Miller told defendant that the exam was " totally voluntary" and that the polygraph could not " be used against [her] in a court." She also told defendant that she could " get up and walk out, if she [did not] want to take it." Defendant agreed to submit to the polygraph exam. Defendant ultimately agreed to take the exam on August 2.
[269 Or.App. 650] Later on the same day that she had agreed to take the polygraph exam, defendant spoke with a DHS employee, Davis. Davis's contemporaneous reports recount that defendant told Davis that she had spoken with Miller and that she was " willing to do a polygraph regarding this matter." Davis told defendant that she had created a safety plan for L and that, under that plan, defendant could not have any unsupervised contact with L until the police investigation was completed. Specifically, Davis noted in her report that she had discussed " with [defendant] a safety plan, until a polygraph has been completed." Another DHS employee, Kelly, confirmed that she had requested that defendant " not have unsupervised contact with her daughter until that polygraph had been done." However, she denied telling defendant that she would not regain custody unless or until she passed a polygraph.
On August 2, at about 11:00 a.m., defendant met with police polygrapher, Sergeant Turre, at the Lincoln County Sheriff's Office to take the polygraph exam. Before he administered the exam, Turre informed defendant of her rights--a combination of Miranda warnings and advice that taking the polygraph was voluntary--and defendant acknowledged those rights by signing the advice of rights card. Turre [269 Or.App. 651] also informed
defendant that she could stop the exam at any time. He told her that the polygraph was 97.3 percent accurate and that the entire process was being recorded. Turre made no threats or promises and did not tell defendant that she would be unable to see her daughter if she refused to take the polygraph.
During the same " pre-test" discussion, Turre also asked defendant about her medical status. Defendant informed him that she had a stent from a kidney stone removal procedure. Turre explained that one of the straps for the polygraph would go around her abdomen and that she should tell him if it became uncomfortable. Turre asked defendant if she had taken any medications before she came in, and defendant said that she had last taken oxycodone and hydrocodone at 10:00 p.m. Defendant also informed Turre that she had been sexually abused as a child by various members of her family.
During the polygraph exam, defendant's demeanor was calm and reserved; defendant never asked to stop the exam. According to Turre, defendant did not appear to be under the influence of any intoxicant and showed no indication of being in pain. Defendant did not ask to take any pain medication or to have anything to drink during the exam.
After the polygraph exam was completed, Turre informed defendant that she " didn't do very well." Defendant did not seem shocked or express disbelief in failing the exam; instead, in Turre's words, she " just got quiet." Turre explained that the polygraph showed that defendant was being " deceptive" and that he had " no doubt that [defendant] touched [L's] vagina" beyond normal caretaking. Turre asked defendant why she had done that, and defendant responded that she did not do that. Turre told defendant that the polygraph showed that she had " failed worse on the question where you touched her vagina for your own sexual arousal" ; again, defendant denied having done that. Turre told her, " Your body is telling me that you did" and that he needed " to try to understand why."
For a third time, defendant denied sexual contact with L stating, " I didn't do it." Turre responded, " Well, I think you did," and suggested that maybe, because of her [269 Or.App. 652] history of sexual abuse, defendant had " been curious and may have touched [L] out of curiosity, but * * * more than normal caretaking."
Defendant then told Turre that she had talked to her counselor about her parenting because she was afraid of being an abusive parent, because of the abuse that she had suffered. However, defendant denied sexual contact with L for a fourth time, stating, " I've never touched her like that." Turre responded, " You have. You have. I need you to be honest with me here, okay?" He explained that he did not " look down" on defendant, but believed that, because of her " past," defendant had touched L for her own sexual arousal.
Turre then asked defendant, " How many times have you done that?" --and defendant replied " I haven't done it more than twice." Around that time, defendant's demeanor changed, and she began to cry. Turre asked defendant what she had done specifically, and she replied that one time she " pushed on [L's] vagina more than [she] should have." When Turre asked defendant if she had rubbed L's vagina for a noncaretaking reason, she nodded in agreement. She then stated that it happened ...